Spring 2015

Exhaustion of Administrative Remedies

Michael and Laura McIntyre, parents of five home-schooled minor children, sued El Paso ISD, five administrators, and three of their own family members after the district’s attendance officer questioned whether the children’s home school education was provided in accordance with the guidelines established in Texas Education Agency v. Leeper, 893 S.W.2d 432 (Tex. 1994).  The children’s grandparents informed El Paso ISD that the McIntyres were not providing required home school education.  When the parents refused to provide any detailed information regarding the education they were providing to their children and refused to sign the district’s locally-developed home school verification form, the school district initiated truancy prosecutions.  In response, the parents sued requesting a declaratory judgment, equitable relief, and a permanent injunction against the district based on alleged deprivations of equal protection, due process, and religious liberty and malicious prosecution.  The McIntyres later dismissed their claims against the family members and three of the five district employees, leaving the district, former superintendent, and attendance officer as the only remaining defendants.


The district sought dismissal of the lawsuit based on failure to exhaust administrative remedies, election of remedies, insufficient notice under the Texas Religious Freedom Restoration Act, and immunity.  El Paso ISD asserted that because the parents claimed to be aggrieved by the school district’s application of the school laws of the state, they were required to first exhaust administrative remedies, including an appeal to the commissioner of education if necessary.  The parents claimed that they were excused from exhausting administrative remedies because such remedies would be inadequate.  El Paso ISD also sought to dismiss the individual employees from the suit based on the election of remedies provisions in the Texas Tort Claims Act.  The district court denied El Paso ISD’s pleas to the jurisdiction and motion for summary judgment, and the school district appealed.

LAF filed an amicus curiae brief with the Eighth Court of Appeals in El Paso.  The court of appeals reversed the trial court’s orders and rendered judgment for the school district, dismissing all of the McIntyre’s claims.  The panel of the Eighth Court ruled that “nothing in Leeper suggests that an attendance officer does not have the right to investigate truancy claims, or that home school parents need not prove they are teaching their children in a bona fide manner from an appropriate curriculum. Leeper merely provides the possibility for a home school to qualify for exemption from compulsory attendance laws . . . .”  As to exhaustion of remedies, the panel held that the McIntyres’ claims involved the “school laws of the State” and they did not pursue administrative remedies prior to filing suit, so the trial court lacked subject matter jurisdiction.

The McIntyres filed a petition for review with the Texas Supreme Court, which has requested briefing on the merits from the parties.  LAF has agreed to file an amicus curiae brief with the Texas Supreme Court urging the court to deny the petition for review and uphold the decision of the El Paso Court of Appeals.  The Texas Supreme Court has requested briefing on the merits from both parties.  McIntyre v. El Paso Indep. Sch. Dist., No. 14-0732 (pet. filed).  LAF’s Attorney: Lisa Brown, Thompson & Horton, L.L.P., Houston.